By Andrew C. McCarthy
Tuesday, September 29, 2026
Earlier this month, when we marked the 25th anniversary
of the 9/11 atrocities, my reminiscences as a former terrorism prosecutor
focused on the even more dimly recalled eight years prior to the suicide
hijackings. (See here and here, and this Free Beacon review of Second Wave, a book about al-Qaeda’s plots to hit
the United States again shortly after 9/11.) To my mind, the most
underappreciated counterterrorism innovation is the transformation from the
Clinton-era law enforcement paradigm to the law-of-war footing adopted by the
Bush-Cheney administration after nearly 3,000 Americans were killed and iconic
American sites were demolished or badly damaged.
In fits and starts, out of frustrating recognition that
the crime model was a security disaster while the war model invited overkill
that stifled American liberties, we’ve finally arrived at an uneasy hybrid: (a)
military and intelligence operations against jihadist groups overseas; (b)
intelligence and treasury mapping and monitoring of jihadist groups as they
move money, personnel, and assets across borders and continents; and (c) law
enforcement prosecutions of terrorists caught plotting attacks and of their
abettors providing material support. It’s far from perfect, but it’s a vast
national defense improvement over how things stood on February 26, 1993, when
the World Trade Center was bombed — which I regard as the Sunni jihadists’
declaration of war against the United States. (Arguably, the Shiite jihadists
had declared war in 1979, with the Iranian revolution followed by the siege of
the U.S. embassy and Hezbollah’s attacks on U.S. installations and
assassinations of American officials. But the WTC bombing was the global
anti-American jihad’s proclamation that it could hit us in our homeland.)
The reports of a jihadist plot in Britain over the
weekend, and particularly the frustration — including that expressed by President Donald Trump and Secretary of State
Marco Rubio — that the five suspects apprehended were promptly released, is
a reminder that the “war or crime” dilemma confronts the United Kingdom, just
as it confronts every Western nation targeted by Muslim terrorists.
British counterterrorism has traveled a path nearly
opposite our own.
Let’s set the stage. Five men in their mid-20s were
arrested in the wee hours of Sunday morning in a village near the Royal Air
Force base in Fairford. All five are British nationals (which hardly precludes
the possibility that they are Muslim terrorists connected to overseas jihadist
networks). They were suspected of plotting to attack the base, which our NATO
ally allows the U.S. armed forces to use, including in connection with the
ongoing Iran war. By Monday, all five had been released on bail. CBS News (in
the report linked above) says the U.K.’s counterterrorism police stress that
the men are “subject to stringent conditions on their movement and contact with
others,” and that they “absolutely remain under investigation as we explore
multiple lines of enquiry.”
These assertions are consistent with Secretary Rubio’s
insistence that Sunday’s incident was “very serious” and “clearly involved” a
foreign power — which could be a country or a terrorist organization, and which
the president suggested could be Iran.
Nevertheless, the rapid release without charges, along
with reports that the police found no explosives or weapons, has led to
speculation that the men were not engaged in a terrorist plot at all — were,
perhaps, just looking to steal fuel. Some of that supposition seems daft to me.
(If you wanted to steal fuel, would you really try to pull that off at or near
a fully armed and operational military base?) Yet, the doubts about whether
this was truly terrorist activity, notwithstanding the implication that it was
from statements of top officials with better intelligence than the public has,
is understandable. After all, Britain has a long history of detaining terrorist
suspects.
Let’s turn to that history.
In the 20th century, the U.S. had comparatively little
experience dealing with organized terrorist activity. And our 1970s experience
— spawned by the radical left’s activism against the Vietnam War and what it
regarded as systematic, incorrigible racism — resulted in spying scandals that
pressured the government to fortify due process protections. By contrast,
throughout the century, Britain dealt with a low-thrum but often brutal
terrorist war against the Irish Republican Army — and, in the last decades of
“The Troubles,” the Provisional IRA. There had thus been episodes of internment
of IRA suspects, a process that was refined over time into a form of pre-charge
detention (i.e., the suspect is held in anticipation of criminal charges).
By 2000, the Troubles had subsided, but the U.K., like
most of the West, was awakening to the jihadist threat. British
counterterrorism law was amended to reach foreign operatives more readily. And
after 9/11, anti-terrorism legislation led to indefinite detention of foreign
nationals suspected of terrorism (deportation having become more difficult
because of court decisions).
To summarize, while America stood firmly on a law
enforcement counterterrorism footing until 9/11 occurred, the Brits, because of
their different history, had long before carved terrorism out of their criminal
justice system and subjected suspected terrorists to forms of detention,
monitoring, and interrogation that would have violated ordinary due process
rules.
Here’s the interesting dichotomy: While we’ve
incorporated law-of-war measures since 9/11 (the most extreme being the
continued use of lethal force overseas and some remaining indefinite
detention), British law has scaled back its wartime measures under political
pressure from progressives, Europe, and a growing (and very politically active)
Muslim population.
Indefinite detention was reduced, first to 28 days of
pre-charge detention, and now to 14 days. And that is a ceiling — not close to
automatic because it is supervised by the courts, which will free a suspect if
the proof seems weak. Moreover, if a suspect is released from detention, it is
difficult to re-detain unless the police can show newly discovered evidence of
guilt. On the other hand, the police have discretion to impose significant
monitoring conditions on suspects who are released on bail — and then, if the
suspects transgress the stringent release conditions, they can be charged and
potentially detained for bail violations.
Consequently, a quarter century after 9/11, British law
more resembles pre-9/11 U.S. counterterrorism than it did during and in the
immediate aftermath of 9/11. I believe this is the reason the suspects have
been released.
As a number of analysts have pointed out, this weekend’s
arrests appear to have sprung from a reactive police investigation rather than
an intelligence probe. That is, notwithstanding President Trump’s claims to the
contrary, the Brits may not have been looking into these suspects for a long
time; the five may instead have been grabbed because they were acting in a
suspicious manner — it’s hard to tell because there are, for now, no formal
allegations.
If that theory is right, then police are starting from
scratch: They have some evidence of clandestine activity in a location that
would be an attractive terrorist target, but they may (at least at the time of
apprehending people) have had scant intelligence regarding their connections
(if any) to foreign powers. Although investigators apparently believed that a
bombing plot was afoot, current indications are that they did not seize
explosives, bombing components, or other weapons.
Now, that doesn’t mean it wasn’t a bombing plot. Sunday
could have been a dry run, or it could be that the five men arrested were
supposed to meet up with other plotters who weren’t arrested and haven’t been
identified — there are infinite possibilities. This much, however, seems clear:
The investigation is in its early stages; what happened over the weekend was
not the culmination of a counterterrorism probe in which, after days or weeks
of observation, a bombing plot was thwarted.
From the perspective of the British police, the sensible
course was to release the suspects on bail. It gives investigators the
opportunity to monitor while exploring connections to other players and foreign
powers. Simply stated, Britain is not on a war footing; it is in law
enforcement mode. If police and prosecutors had pressed for detention without
enough evidence to charge terrorism crimes, a judge would have set the suspects
free, the government would have been humiliated, and the case would have been
set back.
Of course, if the suspects are terrorists, then releasing
them — even with monitoring — is a setback for British national security and,
possibly, American military safety and effectiveness.
The longstanding quandary hasn’t changed. It can’t
change. If a country sees itself as at war, national defense is the priority
and suspected enemy operatives are detained even if the grounds for suspicion
are sketchy or can’t be revealed in court for fear of exposing intelligence
secrets and sources. If a country does not see itself at war, then terrorism is
treated as a law enforcement issue, and due process for the suspects is
prioritized over public safety.
That is frustrating, especially for Trump officials who
seem to think — incorrectly — that they are empowered to “designate” suspected
criminals as terrorists and then treat them as if they were alien enemy
combatants with no due process rights. Yet it’s simply a fact that neither the
British nor the American public feel sufficiently threatened at this moment to
transition to a war footing. I’m not saying that’s a bad thing, or implying
that I’d like to see it change — which would probably require a massive
terrorist attack. Just that it’s a fact.